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Tuesday, 20 November 2012

Amicus briefs and consultation in CJEU cases: a constructive comment

Somewhere beyond Europe there
is a parallel civilisation in which
consultations and comments are
handled rather better ...
Returning to the subject of impossibly short periods within which interested IP folk can respond to calls for comments by the UK Intellectual Property Office on cases coming before the Court of Justice of the European Union (CJEU), the IPKat is delighted to receive the following very sensitive and constructive criticism of the present system by his wise old friend Richard Ashmead:
As an aside to the IPKat’s 18 October comments on amicus briefs, some related thoughts on Member State observations to the CJEU may be of interest. These can, and perhaps should, have the flavour of an amicus brief but seem not to be greatly used in trade mark matters coming before the CJEU.  
Articles 23 and 40 of the Statute of the Court of Justice invite the Commission, the Member States and certain institutions, bodies, offices or agencies of the Union to file written observations in reference cases, and to make interventions in appeals in much the same way. Such observations can play an important in enabling the CJEU to harmonise EU law by its preliminary reference cases, and appeals can of course raise legal issues of importance too. The point, particularly for references, is that the Member States have an opportunity to make their views on the reference questions known to the Court, including what they think the Court’s answers to the reference questions should be.

The confidentiality applied by the Court of Justice to papers before it does not make it easy (this is rather an understatement) to find out which Member States have intervened or filed observations in pending cases. AG opinions, Court judgments and orders, though, do usually indicate which Member States have intervened or filed observations, although they rarely reveal what they have each said.

While preparing earlier this year for a paper for the ECTA Conference in Palermo I ran through the CURIA list of reference cases indicated to have trade mark relevance and extracted the data for the table below:

Case
Document
Date
Name of parties
Observations and/or hearing attendances
C-9/93
Judgment
22/06/1994
IHT Internationale Heiztechnik
UK DE  EC
C-53/96
Judgment
16/06/1998
Hermès
NL FR UK EC
C-405/03
Judgment
18/10/2005
Class International
None
C-316/05
Judgment
14/12/2006
Nokia
FR EC
C-328/06
Judgment
22/11/2007
Nieto Nuño
FR IT EC
C-442/07
Judgment
09/12/2008
Verein Radetzky-Orden
IT EC
C-276/05
Judgment
22/12/2008
The Wellcome Foundation
GR PT EC
C-529/07
Judgment
11/06/2009
Chocoladefabriken Lindt & Sprüngli
CZ SE EC
C-302/08
Judgment
02/07/2009
Zino Davidoff
CZ IT PT EC
C-301/07
Judgment
06/10/2009
PAGO International
EC
C-236/08
Judgment
23/03/2010
Google France and Google
FR EC
C-127/09
Judgment
03/06/2010
Coty Prestige Lancaster Group
IT AT EC
C-235/09
Judgment
12/04/2011
DHL Express France
FR DE UK NL EC
C-324/09
Judgment
12/07/2011
L'Oréal and Others
UK FR IT PL PT EC
C-400/09
Judgment
28/07/2011
Orifarm and Others
CZ IT PT EC
C-307/10
Opinion
29/11/2011
The Chartered Institute of Patent Attorneys
UK CZ DK DE IE FR AT PL PT SL FI OHIM EC
C-190/10
Judgment
22/03/2012
GENESIS
ES IT GR EC

The Commission (“EC”) filed observations on all of the reference cases but one.  The rest filed observations as follows: 
* France & Italy: 7 cases each 
* UK & Portugal: 5 cases each 
* Czech Republic: 4 cases 
* Germany: 3 cases  
* Greece, Austria, Poland & Netherlands: 2 cases each 
* Sweden, Denmark, Ireland, Slovenia, Spain & Finland: 1 case each
Why so few Member State observations? Governmental resources (financial and other) may come into play, as could, I suppose, inter-governmental arrangements to avoid duplicative efforts, and there may well be views that particular reference questions do not reflect local concerns. Given too that the EC seems to have a policy to respond with formal observations to most reference cases there may be some Member State reliance that the EC will be dealing with them anyway. Mostly, I suspect that the two months set in the Court’s Statute is just not long enough for Members States’ governments to respond. 
I do not know whether this sort of pattern is repeated in other legal fields but I suspect that it may be, as the short term allowed is uniform. The UK approach is for the Court’s Article 23 notifications to go to the Treasury Solicitors’ Office, which sends IP cases to the UK IPO for comment. The UK IPO in turn sends the notifications on to the “interests” (including CIPA and, I think, the IPKat) in a round of consultation, but the communication route usually means that these interests receive word of the cases with no more than a few days to respond to UK IPO. 
That leaves me with some sympathy for Member States faced with a reference case (of which they may not have previously been aware), with only two months to decide whether the reference questions are important to them and, if so, to prepare a reasoned brief for the Court. If the Court wants member state input on what the shape of EU law should be, which I think it should, then it could perhaps try to find more time for Member States’ observations. The problem though will, I imagine, be in the ttatutory two months term and in the need to avoid changes which might compromise the hope of shorter overall proceedings. 
There is a way out of this two month trap for Member States, but not really an attractive one overall.  All the Member States have right to request, and appear at, a Court of Justice reference hearing, even if they have filed no observations. As an example neither Finland nor Ireland filed written observations in IP TRANSLATOR, but both chose to appear at the Grand Chamber hearing. The trouble with that though is that it enables Member States to put off a decision to file observations, possibly altogether, and that if they do chose to turn up at the hearing their views and arguments at the hearing will be news to the other Member States.

The reference system is considered, rightly, as cardinal to the Court’s role in moving towards harmonisation of EU law, but a mechanism to make it more likely that Member States make their views on the reference questions clear to the Court before a final hearing seems worth some effort, particularly in the light of an effective preclusion of amicus briefs.
Richard observes that these comments are made all the more relevant by the recent Kat-rant over the pathetically short time available for consultation in Actavis v Sanofi, a reference to the CJEU in which, this Kat believes, a good case could be made out for a more generous time allowance given the political and economic significance of the case's outcome. Richard, as well as this Kat when in non-ranting mode, is willing to give up time to sit down with representatives of the relevant government departments in order to discuss ways of bringing about a more effective means of consultation.

3 comments:

Anonymous said...

Hi Richard,
Would it be possible for you to let me know the method you used to find the information in the table? I am hoping to put together similar table, but for copyright cases.

Anonymous said...

Dear all,

I have done research on member states' observations and am now interested in making an argument, for expanding amicus briefs to the ECJ and GC. The pattern of countries intervention which you identified is not unsual, as you have in EU litigation a number of repeat-players (UK, France, Netherlands, Poland, etc). See my article Granger, Marie-Pierre. 2005. “When Governments Go to Luxembourg: The Influence of. Governments on the court of Justice.” European Law Review 29: 3- 31

Anonymous said...

Dear All,

Although interesting - very interesting - in the context of arguments to be made concerning the unduly short time permitted for comments to be received, and therefore heard, I am afraid I do not agree that such observations are made by Member States qua amici curiae, and nor do they fall within the ambit of the normal amicus curiae rules.

They are instead comments/observations from designated interested parties, namely members states of the EU, who have a particular interest (whether they pay attention or not), in the outcome of the proceedings.

A different approach needs to be adopted to the issue of amicus curiae, and whether the CJEU should or does accept briefs of such a nature, bearing in mind the importance of, inter alia, equality of arms, and of being a mere "friend of the court".

The ECHR does admit of, in certain cases, an amicus role, but this is because its rules specifically provide for the Court either to invite comment/observations, or in the alternative, to entertain an application to make comment as amicus curiae. The is not surprising given that its main role is to pronounce on fundamental human rights, and they may well engage or affect parties other than the parties to the particular proceedings. In those case in which this has occurred, the Commission has filed its comments or observations in the form of an amicus brief.

The CJEU on the other hand, is very strict about who can appear before it, and who might have standing to do so, and has been reluctant to alter its long standing approach to hear any party outside those within the ambit of the rights granted by the Treaty(ies), or by its Charter, or by its Rules. It grants to MS, as designated interested parties, an entitlement to make observations when they wish, and only when they wish, but not as amici curiae.

I am not certain we should mix up the role of a MS when it responds - as a named interested party (along with the Commission) - to a reference from another MS, with the role of parties who might wish to be admitted to proceedings as amici curiae, and the extent to which they might be so admitted.

FM

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